JK 526 
1876 

.K3 Counting the Electoral votes. 

Copy 1 



ARGUMENTS 

OF 

HON. JOHN A'.KASSON,M.C 

OF IOWA, 



AND 



HON. STANLEY MATTHEWS 

(OF COUNSEL,) 



BEFORE THE 



ELECTORAL COMMISSION, 



IX THE 



SUPREME COURT ROOM 

February 2 and 3, 1877. 



-washing-ton". 

1877. 



r 




ARGUMENT 

OF 

HON. JOHN A. KASSON 



Mr. Representative KASSON said : 

Mr. President and gentlemen of the Commission, in wliat I have to 
say I shall he mindful of one of the traditions of that very honor- 
able court which usually occupies the bench now filled by this Com- 
mission. It is said of Chief-Justice Marshall that, after listening 
for a day and far into the second day to a young counselor who had 
by that time only passed Littleton, and Coke, and Blackstone, and 
got down to Kent's Commentaries, the Chief-Justice ventured to re- 
mind him that it must be presumed that the Supreme Court of the 
United States itself was partially cognizant of the law, and he might 
be able to abbreviate his argument. In that spirit I shall to-day 
endeavor, as early as possible, to free our part of the case from the 
charges, allegations, and arguments which have been presented and 
which do not seem to us pertinent to the question to be considered by 
tbe commission. 

What is the case before the commission ? First, a certificate, as re- 
quired by the Constitution and laws of the United States and in con- 
formity with the statutes of the State of Florida, certifying the elect- 
oral votes of one of these States which my rfonorable friend who last 
spoke before the recess [Mr. Tucker] was pleased to call "sovereign 
States" of this Union. That certificate is the one which was first 
opened and read in the joint session. There is a second so-called cer- 
tificate opened in the joint meeting of the two Houses of Congress 
in which the persons signing the same preface their own certificate 
by one signed by an officer not recognized by the laws of the United 
States nor by the statutes of Florida as a certifying officer, being the 
attorney-general of the State of Florida. He certifies that there is 
no provision of the law of Florida " whereby the result of said return 
can be certified to the executive of said State," admitting by that 
certificate, if it has any force at all, that his action is without the 
law and without any sanction of the statutes of the State. Next, 
the self-styled electors certify to their own election and their own 
qualifications, and that they themselves notified the governor of their 
own election. That is the certificate No. 2, a certificate of unauthor- 
ized persons and uncertified persons in the view of the laws, State 
and national, and that was presented and opened in pursuance of the 
recent act of Congress for what it is worth. 

There is a third certificate still more extraordinary, still more want- 
ing in all the legal elements of electoral verification, and which asks 
for itself consideration. It is a certificate which is thoroughly ex 
2)ost facto, certified by an officer not in existence until the functions 
of the office had been exhausted ; a certificate which recites or refers 
to posterior proceedings in a subordinate court and in a superior State 
court, the latter expressly excluding the electoral question ; a cer- 
tificate which is accompanied by that sort of a return which a can- 
vassing board might under some circumstances report to the State 



officers, but which has never been sent to the Congress of the United 
States or to the President of the Senate for their consideration in the 
one hundred years in which we have been a Republic. Every date 
of the judicial orders and of the laws authorizing the executive acts 
certified, the official existence of the very officers who certify them, 
the proceedings in the court as recited in them, are all subsequent to 
that time which by the Constitution and laws of the United States 
is the date fixed for the final performance of electoral functions. 

These two certificates, therefore, are wanting in all the elements of 
constitutional and legal validity which should exist to give them au- 
dience before this commission. They conform in no respect to the 
laws of the country as they now are, or to the laws of the State as 
they were on the 6th day of December, when the functions of the 
electors were ended. More than that, if the first certificate, desig- 
nated as certificate No. 1, is a constitutional and legally certified 
expression of the vote of the State of Florida, that question being 
settled in favor of this certificate obviates the necessity for consid- 
ering the certificates numbered 2 and 3. I ought, perhaps, to say to 
the honorable commission that it is fortunate they did not grant the 
request of our objectors for an adjournment till to-morrow. The next 
mail might have brought to you certificate No. 4 or 5, reciting to you 
new proceedings, a new action before the courts, and no end would 
come to the papers that might be p resented in party or personal in- 
terest as establishing a retroactive right to exercise an electoral func- 
tion in the State of Florida. 

I shall, therefore, cheerfully confine the argument to certificate No. 
1, because if the objections to that certificate are invalid, and the cer- 
tificate itself is valid, of course that dismisses all need of considera- 
tion of the other certificates and we shall have ascertained what is 
the constitutional and legal electoral vote of the State of Florida. 

The objections to this certificate are substantially one, namely, 
that there was fraud, or conspiracy, or both somewhere behind it, and 
behind the college, not by reason of anything which appears in con- 
nection with the electoral college, or its proceedings, or on the face 
of the_ certificate, but because of action on the part of local or State 
canvassing officers, or of the people, and away behind all action of 
the presidential electors themselves. Hence it is that we have heard 
this morning chiefly, instead of a constitutional and legal presenta- 
tion of the question within your jurisdiction, a sjjeech before this 
commission as if it were a jury iu a court having original jurisdic- 
tion to determine law, to determine fact, to establish titles to office, 
to oust and to install officers, to decide rights between parties, to decide 
State rights, to decide national rights, an assertion that State or 
county officials, wholly outside of national control, have somehow 
acted fraudulently under State law, and that this electoral return 
has been vitiated thereby. 

Now it is not within the scope of my purpose to answer otherwise 
than generally that argument which took up most of the time of the 
objectors who opened this discussion. I must affirm, however, to 
this commission that the first objector was in error in saying that we 
on this side had nothing to say contradicting his assertions of the 
frauds. We say everything in denial of fraud in the State officers. 
"We affirm fraud in directly the reverse sense, and frauds which you 
would ascertain in the very steps to which he calls our attention, 
in the action of certain county canvassers certifying results for 
Tilden electors. For example, when he refers to Baker County I en- 
tirely dissent from his view of the facts as existing of record in that 
case; but if you go into that question in Baker County to verify his 



assertions we should inevitably ask that you go iuto Jackson County, 
where, under other political domination, they rejected 271 votes act- 
ually cast for the Hayes electors. We should ask you to go iuto 
Alachua County and find at one precinct a railroad train of non-resi- 
dent passengers getting off on their passage through and voting the 
ticket which was supported by the objector [Mr. Field] who made 
the allegation against Baker County. We should invoke your atten- 
tion to Waldo precinct of the same county to find that they had 
vitiated that poll also by what is called stuffing the ballot-box. Aud 
so on with other counties passed upon by the State board. 

We answer, then, the allegation that their charges of fraud have 
not been denied by us, by stating that if they are ever reached in the 
exercise of your jurisdiction, we propose to show, and shall show in 
that contingency, that there was such a case of fraud in the incipi- 
ency of that vote which they claim should elect their candidate as 
would astonish not only this commission, but the whole country by 
its presentation. I unite with my friends in condemning fraud wher- 
ever it exists. It should not only vitiate the result which it produced 
when it is ascertained by the proper tribunals, but it should also con- 
demn every man, public or private, who participated in it. We are 
not here to defend fraud. We are here, however, to say not only that 
the allegation of it as made on the other side is not correct, but that the 
very next step behind the county canvassers confronts you with some 
of the grossest cases of the violation of the popular right to freely 
cast the vote, and to have that vote counted, which has ever been 
found in the history of this country. 

If we go for fraud, let us go to the bottom of it ; let us go where 
that fraud is found in such a degree and with such force, in more than 
one State North and South, as to penetrate the very foundation of 
the popular sovereignty of this country, and to lead every patriot to 
consider whether the highest duty of legislators is not first to put 
their guards where alone fraud is essentially to be feared, namely, at 
the ballot-box, because it is further removed from the sight of the 
general public and from the control of supervising authority. 

I leave that question now. I do not believe that this commission 
by the Constitution or laws was ever intended, or has the power, to 
go to the extent that would be required if they attempted to probe 
these mutual allegations of fraudulent voting and fraudulent can- 
vassing to the bottom by judicial investigation and judicial decision. 

It seems to me that our honorable friends on the other side have 
been misled by the judicial atmosphere of this hall, consecrated 
usually to the jurisdiction of a constitutional court of justice. Under 
the influence of these columns as pillars of a supreme court, and with 
the judicial associations of this chamber, they have addressed you, 
honorable gentlemen of the commission, as if you were a constitu- 
tional court, vested with the power to try causes without a jury, 
vested both with the powers of a subordinate and an appellate court 
in a proceeding by quo ivarranto, and vested with unlimited discretion 
in the determination of rights to hold the electoral office. They have 
presented to you the following questions upon which it is absolutely 
necessary to come to a decision, upon their theory of your jurisdic- 
tion. 

First. Is this commission a general canvassing board with power to 
recanvass the popular vote of the State of Florida ? 

Second. Is this commission a national courfc of appeal from the State 
canvassing boards? 

Third. Is this commission a judicial court of appeal from the State 
circuit court of Florida in proceedings by writ of quo warranto ? 



The gentlemen on the other side affirmed that your jurisdiction 
was co-extensive with that of a court in a proceeding by quo war- 
ranto ; and I add in response to the alleged decision ot this subordi- 
nate court, Judge White's court in Florida, that it is not a final de- 
termination of that proceeding by quo warranto. We are informed, 
and so claim the fact to be, that it is now pending on appeal in the 
supreme court of the State of Florida. Hence I ask the tpiestion 
whether this commission can take jurisdiction from the supreme 
court of Florida, after regular aijpeal from the circuit court, of the 
proceedings in quo warranto. 

The affirmative of all these propositions is taken by our opponents. 
They do affirm that you are a canvassing board with power to recan- 
vass the vote of Florida cast by the people ; they do affirm that you 
are not merely a canvassing board, but a national court of appeal 
from the action of the canvassing board of Florida ; they do affirm 
that you are a court so judicial that from the action of the State cir- 
cuit court of Florida you can take jurisdiction by reviewing that 
action ; and they do affirm that there is no limit to your power to 
investigate into the honesty and integrity of the action of the return- 
ing board of Florida, and to determine originally, with the powers 
of a court, to whom the certificate of election should have been 
awarded. 

This represents the legal position of our opponents. I ask, there- 
fore, what are the powers of this commission ? I need not remind 
the honorable gentlemen composing it that the assumption of these 
powers implies that we are to have no election of a President and 
Vice-President of the United States by the time limited for the com- 
mencement of the functions of their offices. You cannot say to 
those gentlemen : " We will go behind the regular certificates pro- 
vided by the Constitution and the law just so far as will accom- 
modate you to find whether it is true or not that what you allege 
to be fraud was done against your interest in one or two counties. 
We must if we go behind the electoral college go where all the al- 
legations of fraud on both sides assert its existence. It is the pop- 
ular vote that those gentlemen say you are to review, to recanvass, 
and to ascertain. Where does this commission get its power for 
that ? By the act organizing the commission you are vested with the 
right to consider just so much of this alleged case as Congress might 
consider; and when I say "Congress" I include, of course, the two 
Houses. Let me ask then what is that limit ? We must clear our 
minds from what has grown within the later years to be most dan- 
gerous to the reserved rights of the States and to the rights of the 
people, namely, the assertion of unlimited universal power of each 
House, or of both Houses, to assume jurisdiction over all things or 
questions having a national aspect or relation. No such undetined 
grasp was intended by the Constitution. Suppose this act — and I 
beg the attention of gentlemen to it — suppose this act had provided 
that, instead of surrounding the president of this commission with 
these geutlemen and conferring these indefinite powers, Congress had 
chosen to surround the President of the Senate with only the repre- 
sentatives of the Senate and of the House would you have thought 
of attributing judicial power to them? The same power that justi- 
fies Congress under the Constitution of the United States in pro- 
viding that the counting should be done by this commission would 
have justified them in providing that the counting should be done 
by the President of the Senate alone. Admitting that Congress has 
power to that extent to regulate the counting you must guide your- 
selves by the same principles in determining your jurisdiction that 



you yourselves "would decide limited the jurisdiction of the Presi- 
dent of the Senate as sole counting agent were he designated by 
this act to count the votes alone. 

Now suppose that act in existence, and you have it "by law that 
the Vice-President shall not only open, but shall himself count the 
votes. If the Constitution had said " and the votes shall then be 
counted by Mm," the same result would have been attained. If in- 
stead of "by him," you add the two words "by Congress," you do 
not vary tlie power at all. Whatever counting is to be done is to be 
done either by the President of the Senate or by the two Houses of 
Congress. In either case it is only to " count!" That is the sub- 
stance. The rest is agency. Would you maintain for one moment, 
if that were the provision, either of Constitution or law, that the 
President of the Senate should count the votes ; that he had the 
right to send out commissioners to take depositions ; " to take into 
view " all other papers ; to reach evidence at will ; to recanvass the 
popular vote of the State of Florida ; to organize the whole machinery 
alike of executive canvassing boards of a State and of all the ju- 
dicial courts of the State ? Is there a gentleman on this commission 
from either House of Congress or from the Supreme Bench who would 
tolerate for a moment the exercise of such power under the simple 
language " shall count the votes ?" If not, then the act has given no 
additional power to fifteen men beyond that power which by the like 
terms would have been conferred upon one man ; and hence I affirm 
that there is in this law no power whatever to do more than is nec- 
essarily implied in the words " and the votes shall then be counted.''' 

If that be so, then we come to the next question, What does the word 
" count " mean ? and is the power of that sort that implies something 
not ministerial, or within the narrow circuit of discretion that belongs 
to the ministerial power ? Does it imply, as gentlemen on the other 
side claim, the unlimited circuit of the judicial power? If it does, 
your Constitution in its very frame-work and organization is violated. 

The first three articles of the Constitution divide the functions of 
this Government into legislative, executive, and judicial. The third 
article affirms positively that the judicial power is vested in one Su- 
preme Court and in inferior courts to be established. 

So the first article says that all legislative power granted is vested 
in the Congress of the United States. So the second article says that 
the executive power is vested in the President. Your limits are 
drawn by the Constitution of your country, which tells you that the 
several powers of this Government, the three great powers, shall not 
by any contrivance be merged or mingled in any tribunal ; whether 
constituted of the three divisions, or of any or either of the three. 
The safety of our people hangs on it ; the safety of our States hangs 
upon it ; all the elements of national safety hang upon the observ- 
ance xof that division of the functions of government. It is the 
greatest act in the progress of modern civilization as contrasted with 
the ancient and the Eastern, which combined all functions in one 
supreme head. It withholds each department of power from assum- 
ing either of the other essential powers of the Government, that the 
people may be saved from the tyranny of irresponsible authority. 

The claim made on the other side confuses and merges them in so 
far as you are asked to exercise judicial functions in the determina- 
tion of rights. The very language used this morning was that your 
powers were co-extensive in this matter with those of a court trying 
a proceeding by quo warranto. Are you, then, a court under the third 
article of the Constitution ? 

I therefore think it may be assumed that the indefinite language 



8 

of this act of Congress confers no such powers as claimed upon this 
delegated commission, organized to tide over a difficulty, and to do the 
ministerial act of counting the votes in the stead of the President of 
the Senate. 

I have spoken of the narrow circuit of discretion that surrounded 
the ministerial act of counting. I beg to renew the distinction that 
there is no difference made by adding, as this act implies, the words 
" by Congress " at the end of the constitutional clause, so that it would 
read " shall then be counted by Congress." It is the same as if the 
words were added " shall then be counted by him," meaning the 
President of the Senate. The essential factor of the phrase is the 
"count." 

Now what is that narrow circuit of discretion ? It is broad enough 
to ascertain whether the papers before you as certificates are genuine 
and not counterfeit, and are duly and truly verified by State authority 
as required under the Constitution and laws. It is broad enough to 
ascertain whether the electoral college has complied with the law. 
This is a ministerial examination. Do the papers upon their face con- 
tain evidence of fraud, of doubt, of irregularity, of error ? Is certifi- 
cate number two on its face more regular, more free from apparent 
fraud, more worthy of being received in evidence than certificate num- 
ber one ? Is certificate number three a truer certificate, more in com- 
pliance with law, and bearing upon its face the greater evidences of 
its authenticity ? Which is the authentic certificate, and the authen- 
ticated vote ? These are the questions to be ministerially settled. 
Neither Congress nor any officers created by it have the right to re- 
count popular votes ; for the Constitution says expressly, it is the 
electoral votes that are to be counted, not the popular vote. Over this 
Congress has no power under the presidential clauses of the Constitu- 
tion. 

Every phase of the discussion confronts us in a narrower or broader 
circle of reasoning with this one question : Are you to revise and ad- 
judicate all the proceedings of State elections for electors of Presi- 
dent and of all State tribunals relating thereto appointed by State 
laws ? We always come around to that. Or are you to count what 
is properly certified and presented to you ? If you affirm the first 
proposition you must declare the Constitution amended by this tri- 
bunal, ipso facto amended; so that it shall read: "Each State shall 
appoint, in such manner as the Legislature thereof may direct, a 
number of electors equal," &,., subject, however, to revision by the Con- 
gress of the United States, who shall have power to overrule the State au- 
thorities in determining the college of electors. Would the Constitution 
ever have been adopted with that construction ? 

We are brought inevitably to such an amendment by construction. 
Yet the Constitution sought to preserve absolutely the right of the 
State to appoint its electors without Federal dictation. It required 
every ballot to be cast on the same day throughout the Union, that 
it might be free from every centralized influence. Every member of 
the commission knows what the history of the adoption of this clause 
is, and yet we are brought perpetually by the claims of the other side 
to this one question : Shall we now go on and complete the absorp- 
tion of this most absolute, independent, and unquestioned right of 
the States to appoint their electors in their own way and hold that it 
is subject to revision and change by the two Houses of Congress ? 

The objectors asked are we, then, to take the certificate of the proper 
State officers against the truth ? Is there any reason why, on the 
other hand, it should not be asked, are we to take the certificate of 
these fifteen gentlemen against the truth ? There is a necessity in 



9 

public affairs and in the very organization of society and of political 
communities, an absolute necessity to have some final jurisdiction. 
There must be somewhere an authority by which we stand even if it 
be impeached by charges of fraud. Where is that authority ? Is it 
here ? Is it in the governor ? Is it in the canvassing board. •? Is it 
in the State Legislature ? Is it in the State judiciary 1 Where is it ? 
I submit that for the purposes of this case, and under the Constitu- 
tion and laws, it is found where the State authority concludes, and 
that if the Constitution and laws of the United States in manner, in 
time, in substance, so far as shown by the duly certified results, are 
conformed to, there is the determination of the case. 

I regret to pause, may it please the commissioners, to repel the sug- 
gestions made against this returning board. It was said that the 
court had found their return fraudulent. There is no evidence in the 
records of the court that that allegation is true. I have read the de- 
cision, and in answering their argument I must say there is not an 
allusion to the fact that that canvassing board acted fraudulently. 
It was alleged that their action, which had conformed to the action 
two years before, was a misinterpretation of their rights under the 
law ; and in the document submitted a few momeuts ago to the com- 
missioners, I think, on the second page, there is a copy of the essen- 
tial section of the law. The important language of the act to which 
I wish to call the attention of the commissioners in the statutes of 
Florida regulating the powers of this board, is this : 

If any such returns shall he shown or shall appear to he so irregular, false, or 
fratiduient that the hoard shall be unable to determine the true Tote for any such 
officer or member, they shall so certify, and shall not include such return in their 
determination and declaration. 

Senator EDMUNDS. Can you give us the date of that statute ? 

Mr. Representative KASSON. That is the old statute under which the 
election was held, passed February 27, 1872, and was the law in force 
at the time of the canvass, at the time of the certificate of the elect- 
ors, at the time of the voting of the electors, and until the 17th of 
January, 1877. 

Representative GARFIELD. Has the paper been filed? 

Senator EDMUNDS. Not as evidence. 

Mr. Representative KASSON. I simply use it for reference because 
in it is found this statute of Florida. I refer to it here and for that 
purpose. This document was handed to the commissioners for the 
law references in it. 

Thus it will be seen that the canvassing board of Florida were to 
inquire if these returns appeared to be so irregular, false, or fraud- 
ulent that the board was unable to ascertain the true vote. That 
was their function. In exercising that function they not merely 
passed upon the returns of the county canvassers but upon the certi- 
fied results in precincts. 

The court said they had overstepped the law. And here I must re- 
mind the gentlemen composing the commission that, when they made 
the recauvass which I have styled canvass number two under order 
of the supreme court of Florida, it will appear they then reported not 
only the result in respect to governor, but they also reported the re - 
suit in respect to electors. That result of the second canvass showed 
the election of the Hayes electors, but by a reduced majority. These 
electors appear to have run two or three hundred votes ahead of the 
State ticket, and the recanvass left them still some two hundred ma- 
jority. That appeared on the record. It does not appear on the 
printed document which has been submitted on the other side here, 
I suppose, because the court ruled that they intended their order to 



10 

only apply to State officers ; and therefore they struck out, after it 
had once gone in the record, the result as to the electors ; bnt it was 
originally a part of the proceedings under order of the court, which, 
if gone into, will show the fact that not only canvass number one 
showed the election of the Hayes electors, hut canvass number two 
had, under the order and in accordance with the ruling of the supreme 
court, showed both the election of the democratic State ticket and the 
election of the Hayes electors. 

Mr. Representative ABBOTT. Was that called in question atall 
in that case of Drew against the other party ? 

Mr. Eepresentative KASSON. It was said not to be raised by the 
pleadings or by the order, but was in the return of the canvass as 
to the election of governor. The canvass had under the order of the 
court in that case showed both classes of elections, that of the elect- 
oral college and that of the State officers. The result of that count, 
when made under that ruling, was what I have stated, and then ob- 
jection was taken to its record, and the court said they were not con- 
sidering the electoral count, and struck it out. 

Representative ABBOTT. My only desire was to learn whether 
that was ruled at all in the case. 

Mr. Representative FIELD. Please to state that in the recanvass 
this canvassing board put back Baker County so as to include only 
two precincts. 

Mr. Representative KASSON. That is only to say that the gentle- 
men on the other side want to take just so much of that action uuder 
order of the court as suits their case and reject all the rest. They 
applied the rule and determined the result, and they made changes 
in several counties both ways ; they put back some democratic votes, 
they put back some republican votes. I only allude to it in answer 
to the statement here because the printed proceedings do not contain 
all the proceedings in that case. This is left out. But if the case is 
gone into those facts must also appear. 

Then we come to canvass No. 3, made after the college was functus 
officio, andt here you find that, not satisfied at all, they appointed 
a new board of State canvassers. From that new board they left 
out the attorney-general of the State. This I suppose was owing to 
the fact that his opinion had been, as to the law of the case iu many 
points of the canvass, with the republican members of the board. 
These papers which have been laid on your desk show that, instead 
of the attorney-general being a member of the new State canvassing 
board, the treasurer of the State was substituted. 

Now, I ask, if you are to recognize canvass after canvass and the 
changing results of partisan affiliations, the changing desires of in- 
dividuals, the changing influences surrounding the canvassing board, 
and the whole political aspect of the State ? Are you to change your 
rules of law, and to say that canvass after canvass may be made after 
function exhausted and that the last canvass made under the circum- 
stances should prevail, ex post facto entirely, ex post facto by law au- 
thorizing it, ex post facto by executive authority, ex post facto by the 
constitution of the board, ex post facto by the exhaustion of the func- 
tions of the officers themselves elect, ex post facto because the very 
terms of the officers elected had expiree! ? 

This ex post facto certificate No. 3 is dated January 26, 1877, and 
Avhen opened in the joint meeting of the two Houses was stated by 
the President of the Senate to have been received only the day before 
the joint meeting. This certificate recites a law of January 17, 1877, 
and also a law of January 26, 1877, as the authority for the certifi- 
cate. It recites the third canvass of which I have already spoken, 



11 

and which was made on the 19th of January, 1877, and the copy of 
that canvass is certified nnder date of January 2G, 1877. Then this 
canvass No. 3 was legislated to be the canvass by act dated January 
26, 1877. These are the essential points of certificate No. 3. 

The objector next me [Mr. Field] proposed at the opening to ex- 
plain in his argument what he styled the "jugglery " by which the 
Hayes electors got their certificates. I ask this commission if there 
be a prima facie presumption of fraud, whether it exists against those 
officers elected before fraud could have been contemplated, against 
a board that acted at the time required by the State law, against 
a board that acted at the time provided by congressional law, 
against a board that acted in ignorance of the electoral vote in other 
States, as it was contemplated by our fathers they should do ; or does 
that presumption of fraud exist against the men who knew of the 
importance of a change of the result in Florida, against men who 
acted in full knowledge of the necessity of the action they took to 
accomplish their results, against men who organized a new tribunal 
and enacted a new law to accomplish that result ? 

If there be fraud, if there be conspiracy as alleged, where does the 
presumption of law under these circumstances place it ? Inevitably 
it places it where the motive of the act, the knowledge requisite to 
give the motive effect, and the purpose to be accomplished, were all 
before the eyes of the persons participant in it. Fraud cannot be so 
presumed against the parties who acted in conformity with law and 
in discharge of duty at the time required by law, and in the mode 
required by law, and in the presence of a political opponent, as that 
presumption would exist against those who do it at irregular times, 
outside the provisions of the law, and with the full knowledge of the 
effect which would be produced upon the general result. The con- 
spiracy is not with the first, but with the last canvass. 

A few words more before I close. I believe I have expressed al- 
ready my great regret that we have not been able on both sides to 
argue these questions exclusively on points where we all see and all 
know are to be found the hinges on which this decision is hung. 

But my honorable friend from Virginia [Mr. Tucker] in his argu- 
ment not only spoke of the fact, which was unsupported by any evi- 
dence, but which he said he could support by some evidence, that 
there was bad motive and fraudulent conduct on the part of the can- 
vassing board, of which I have seen no evidence whatever ; but he 
went further and asked, are we to submit this great question of the 
supreme Magistrate of the United States to the determination of a 
trio of oligarchs in Florida ? Trio of oligarchs ! What shall I say of 
the quartette of oligarchs in my State who exercise corresponding 
functions ? What shall I say of the quartette or the quintette of 
oligarchs that exist in every State of this Union, save perhaps two or 
three, who are empowered in the same manner to preserve the rights 
of their respective States as canvassing boards ? 

Nay, more, I should like to ask my .honorable friend, what shall I 
say of the solo of oligarchy in Oregon and his right to determine the 
election of Chief Magistrate ? Is there any significance in giving 
a name of this sort to a tribunal which is acting under and because 
of the provisions of the Constitution and laws of the United States or of 
the State ? I answer to all that that the question is, where does the 
law put the power to arrive at that determination on which action is 
based ? Whether that be one man or five men, or three men, that de- 
termination is prima facie valid, and can be vitiated only in the modes 
provided by the laws of the local or general jurisdiction, as the case 
may be. 



12 

The case is made when it is found to be in accordance with Consti- 
tution and law in time, manner, and due certification of authenticity. 
Can it be upset? Yes, if legal provision is made therefor. Where? 
says the gentleman. I answer, within the jurisdiction where the 
laws provide for the appellate or original determination of rights. 
But, says the gentleman, suppose no such provision of law is made ! 
Then I answer that a casus omissus of proper authority is no reason for 
the usurpation of that authority where not a scintilla of constitu- 
tional law has placed it. If the allegation were true, it simply shows 
the necessity of further legislation where that legislation ought to 
exist. If it be untrue, the whole ground and fabric of the argument 
here falls to the ground. 

The Constitution says that we have very, very little to do with 
this matter of elections by States. The history of it shows that it 
was intended that we should have very, very little to do with the 
determination of the result. It gave us no authority to overrule 
State action; and the alleged right to change a duly certified result 
contains within itself a claim of right, and without appeal, to deny* 
to the States that exclusive right which the Constitution took such 
extraordinary pains to confirm to them. 

If you have the right to say that another set of votes must be 
counted in Florida, you have the right to say that another set of 
votes must be counted in New York ; and if you take jurisdiction to 
allow the mere ninety votes which constitute the alleged majorities 
in Florida, and which would change the electoral college of that 
State, a partisan Congress may assert that the sixty thousand ma- 
jority of my State shall be overthrown, and we cannot question it nor 
take appeal. 

I speak to you as if you were Congress, because the act says that 
whatever Congress might do in the consideration of certain questions 
you may do. I say that Congress itself in no element of its character 
contains a justification for such a construction of its power as it is 
proposed now to give to it. It is the legislative body of the country, 
and may inquire into all these facts, which they have perhaps in 
both branches inquired into, because they may be needed to amend 
the Constitution or to amend the law. 

But the act which creates this board of fifteen says, not that you 
have the same powers which Congress has, but you have the same 
powers which Congress has "for this purpose." What purpose ? For 
counting the votes, as the President of the Senate would do it if you 
had chosen to give him that power. There stand the great bulwarks 
of the Constitution, where they divide the three powers of the Gov- 
ernment, and they cannot be overthrown. 

You cannot be judges of this or any other question for judicial ac- 
tion. If both Houses were unanimous, it would be usurpation for 
them to determine judicially who was entitled to the vote of the State 
of Florida as constituting its electoral college ; and without that 
power this commission is limited to the determination of the relative 
validity and authentication of these three certificates, which is the 
certificate that is duly certified to be counted. Go behind this certifi- 
cate, unless simply to determine the verity of the several authenti- 
cations and their conformity to law, and you launch yourselves into 
a tumultuous sea of allegations of fraud, irregularity, and bad mo- 
tive, and, as my honorable friend on the other side says, greed of 
office or undue ambition to secure the honors of the State. There is 
no limit except we draw the constitutional line narrowly. You can- 
not expand it without launching this vessel of our Constitution upon 



13 

a sea full of rocks ancTdangerSj where tliere is every prospect that it 
will be shattered, and the very structure preserving the rights of the 
States and the nation will go to pieces. 

Senator THURMAN. Will it interrupt your argument, Mr. Kas- 
son, if I make an inquiry ? Do I understand your argument to go 
to this length, that, if the State of Florida had elected four mem- 
bers of Congress or four persons under the disability of the four- 
teenth amendment and they had cast their votes for President, we 
should be bound to count them 1 

Mr. Representative KASSON. I have borne in mind that a ques- 
tion would arise as to Tennessee and some other States touching in- 
dividual electors, as it is also presented in one of the objections that 
have been presented in the House. I have not had time since last 
evening to do more than to become possessed in my own mind of the 
general arguments and the results of those arguments applicable to 
the general principles of this case. 

I have no doubt that the provision of the Constitution touching 
offices of trust, profit, and emolument, and that also relating to persons 
disqualified by participation in the rebellion, are imperative upon the 
several States, and it is expected that they will conform to it. Whether 
we can go behind, whether it was intended that we should go behind, 
the action of the States upon the assumption that they had violated 
that constitutional duty, or to prove that they had violated it, is a 
question that I leave to the consideration of those who shall follow me. 

Of course I understand that one of the objections in Florida, if you 
do permit yourselves to go behind and examine it, does involve that 
point ; but as my time has now nearly expired I have not the oppor- 
tunity to go into it and will leave it to counsel. 

The PRESIDING JUSTICE. You have five minutes of your hour. 

Mr. Representative KASSON. May it please the commission, I 
have said all that I regard essential in that part of the case which 
has fallen to me, and I trust my honorable friend who is associated 
with me will address himself still more effectually to points which I 
have alluded to and to the remaining points of the case. 

My great anxiety and my belief in the great importance of this case 
all rest upon the fact that it is proposed that Congress shall, through 
you, usurp judicial powers for the first time in the history of this 
country. It is a usurpation which loses sight of the great divisions 
of authority in the Constitution of the United States and of the 
original reserved rights of the States. 

I wish in addition to simply call the attention of the commission 
to the recent decision in Florida, which has been published and in 
which that court bases its decision against a judicial quality iu the 
returning board of Florida upon the constitution of Florida, which 
has the same division of powers to which I have referred as existing 
in the Constitution of the United States. 

The court therefore says that this canvassing board cannot do any- 
thing except the ministerial act of determining upon the face of the 
returns irregularity, fraud, &c; and by a strange inconsistency of ar- 
gument the gentlemen on the other side coming to Washington in 
the case of Florida ask this commission to take the other ground 
which has been overruled as law in Florida, and say that we, who 
have not the powers conferred by statute upon the Florida board, 
have immensely larger powers which have not been hinted at in the 
Constitution and laws of the United States, and do have the right 
to exercise judicial functions. 

I commend to the consideration of the commission that decision to> 



14 

which I refer in the case of Drew vs. Stearns. And with that I sub- 
mit this part of the case to the consideration of the commission. 

■f # # * * * • # 

Mr. Representative KASSON. I do not, Mr. President, desire the 
time, except a very brief portion of it, to answer after a little reflection 
the question put to me by the honorable commissioner from Ohio, 
and I wish to say that I answer it according to my best judgment, 
submitting it very deferentially to the able counsel who- are likely 
perhaps to consider the same question, for I understand it is presented 
by an objection, though not in any proper form appearing upon any 
other certificates. I answer the question in accordance with the 
spirit of the division of powers of the different branches of Gov- 
ernment. Congress, under its power to give effect by legislation to 
constitutional provisions, might probably provide by law for inves- 
tigation of the question of personal and constitutional disqualifica- 
tion by judicial adjudication, because it is a judicial proceeding in 
its nature, not executive or legislative ; but without such legislation 
it is not, in my judgment, a question to be considered in counting, and 
the question cannot be tried as an incident of count by either an ex- 
ecutive or legislative board. 

I think I have enabled the commissioner to understand the principle 
on which I consider the question as decided, that it is in its nature 
the determination of a judicial right and cannot be taken up as an in- 
cident to a ministerial function of counting, nor is it within the nar- 
row range of discretion associated with the phrase "ministerial count." 

The PRESIDING JUSTICE. For the information of the commis- 
sion I desire to inquire of the objectors to the first certificate whether 
they propose before the argument by counsel to offer evidence. I in- 
quire of counsel for the information merely of the commission, that 
we may know how to act in consultation, do you propose to offer 
evidence before proceeding to the argument 1 

Mi\ Representative KASSON. While the other side are considering 
that question I desire to state the position of our side on another 
matter that was omitted. We regard as not within the act the con- 
cluding part of the objection to certificate No. 1, and I simply 
want to state that we waive no right to exclude that objection as not 
within the jurisdiction of the tribunal. 



ARGUMENT 

O F 

STANLEY MATTHEWS 



Mr. MATTHEWS said: 

Mr. President arid gentlemen of the Commission : Unused as T 
am to appearing before tribunals so unprecedented and august as 
this, aud equally unused to handling such high themes as form the 
subject of the jurisdiction of this commission, I rise with the most 
unaffected diffidence to undertake the discharge of that duty which 
has been assigned to me by my learned associates ; and while I 
hope that I may say something which will assist the commission in 
solving the questions which are submitted for argument, I shall be 
only too happy if, after I take my seat, I shall be able to recollect 
that I have said nothing which may injure the cause I represent. 

I take the earliest opportunity to correct a serious misapprehension 
on the part of the learned gentlemen who have argued as counsel in 
the opening of this question in respect to the position which they 
seem to assume has been already taken upon our side. I refer to the 
conclusive effect that they suppose we attribute to the certificate of 
the governor of a State accompanying a list of those whom he certi- 
fies as having been duly appointed electors for that State. I am au- 
thorized to say, by the gentlemen who are objectors to the second 
and third certificates, that that statement is an incorrect representa- 
tion of their position, and I respectfully submit that when I have 
stated ours the gentlemen on the other side will understand our case 
differently. 

I think I may also take this immediate opportunity of relieving 
the apprehensions of my very learned friend [Judge Black] who 
spoke last and has spoken so often, in respect to the possible effect of 
excluding the consideration of what he has been pleased to call ex- 
hibits or evidence, upon the judgment of this tribunal. It is, Mr. 
President and gentlemen, the fortunate feature of your legal consti- 
tution that you can make no mistakes. It was a quaint saying, I 
believe, of Selden, in an essay on papal councils, where he was treat- 
ing of the doctrine that they were enlightened by the presence of the 
Holy Ghost, that he had generally found that the Spirit dwelt in the 
odd man. So, in the exercise of the constitutional function, whatever 
that may be, devolved upon Congress in its participation in the count 
of the electoral votes, effectual provision has been made against the 
defeat of the transaction by referring it to a tribunal that cannot be 
equally divided. 

And now, Mr. President and gentlemen, allow me to state in very 
general terms and yet as precisely as I have been able to accomplish 
it, the various propositions by which aud through which we lead our- 
selves and hope to lead you to the conclusion for which we contend 
in respect to the point to which you, as the representatives of con- 
gressional jurisdiction, may go in this inquiry, and that point where 
you must stop. 



16 

What is the transaction that is the subject of the general investi- 
gation ? It is stated, in its iinal result, as the election of a President 
and Vice-President of the United States. In what does that consist f 
It is not a single act ; it is a series of acts. The election of those 
two high officers is not a popular election, neither according to the 
spirit of the Constitution, the meaning of its framers, the interpreta- 
tion of the generation which adopted it, or the practice under it. 
There is a selected body of men in each State who compose the con- 
stituent body which is to make that election ; and I need not remind 
the tribunal that they have a right to make a selection as well as an 
election; and it is altogether a mistake, in my judgment, to consider 
this electoral body as delegates representing a State or the people of 
a State, as agents accomplishing their will. They not only have power- 
in the sense of might, but they have potcer in the sense of right, to vote, 
on the day named, for the persons who, in their judgment, ought to* 
be, all things considered, the chief executive officers of the nation. 

Each State under the Constitution has the right to prescribe the 
mode in which these electors shall be appointed. No one else has any 
right or authority in that business. They may elect by the General 
Assembly or Legislature ; they may appoint by the governor, or any 
other officer whom they may choose to designate ; they may cause that 
appointment to be based on the result of a popular election ; and that, 
in the case of Florida and now in all the States, except the new State 
of Colorado, I believe, is the universal practice ; so that the appoint- 
ment of electors in a State is based on a popular election. 

Now, what is that election ? That also consists not of one act, but 
of a series of acts beginning with the deposit in the ballot-box, if it 
be by ballot, as we may assume it to have been, in each locality pre- 
scribed by law, called a parish, or a precinct, or a township, or a 
school district, or whatever small division of territory may be adopted. 
The voter deposits his written or printed ballot into the hands of 
one, or two, or three judges of election, who inscribe his name in a 
list of voters, and put his ballot into the box, and then at the con- 
clusion of the election make a return of the result, showing how it 
has been attained. That is carried from the primary voting-places 
to the county seat, and there county officers compile these various re- 
turns, acting with more or less powers according to the statutes of the 
State from which they derive their appointment ; and the result of 
that choice in that county as it appears to them, based on the returns 
which they have received from the primary officers, is reported by 
them again to a third and highest and last returning officer or can- 
vassing board, who receiving these returns from all the counties in the' 
State, exercise the powers conferred upon them by law and make that 
which in my judgment is the completion and the consummation of this 
appointment. That board sitting upon these returns make their final 
return of the fact, as it appears to them. Sitting under their re- 
sponsibility as public officers and in the exercise and discharge of 
public functions and public duties ; and having accomplished their 
task, they deposit the record of their finding and declaration in the 
public archives of the State and there they remain in perpetual 
memorial of the fact which they have found. 

Up to that point the State alone acts in the appointment. That 
last act completes that appointment, and that appointment completed 
and finished is unchangeable except by State authority exerted upon 
that act within an interval of time ; and what is that ? Congress 
under the Constitution of the United States has had reserved to it 
control in certain particulars over this appointment ; that is to say, 



17 

it may designate the day on which the appointment shall be made, 
and it shall designate the day on which the electors so appointed 
shall deposit their ballots for President and Vice-President. In that 
interval I do not know and I do not care to discuss, I will neither 
deny nor affirm, but I am willing to admit, any and everything that 
may be claimed on the other side as to the existence of State authority 
to inquire into and affect that record. But when the day has passed, 
when in pursuance of the authority of law conferred upon them by 
that appointment under the statutes of the State, on the day named 
by Congress the body which has, according to the form of law, been 
invested with the apparent title to act as the constituents of that 
great electoral body, and when they are required by Constitution and 
law to accomplish the act for which and for which alone they have 
been brought into being, then that transaction, so far as State au- 
thority is concerned, has passed beyond the limit of its control. It 
then becomes a Federal act. It then becomes one of those things 
which pass into the jurisdiction, whatever that may be, of Federal 
power. It is the deposit of the vote of the elector in the ballot-box 
of the United States, and the nation takes charge of its ballot-box. 
Whatever power, then, may be exerted after that must be exerted 
under that power which is conferred by the Constitution upon any 
constitutional national authority which is invested with authority 
over the subject. These electoral votes so given are to be sealed and 
transmitted to the seat of Government, delivered into the custody of 
the President of the Senate, the Vice-President of the United States, 
who is ex officio President of the Senate, by him kept unopened until 
the day named when he is to open the certificates, and then the votes 
shall oe counted. 

What, then, are we engaged in doing? What, then, is this com- 
mission organized to effect ? It is to assist in that business which un- 
der the Constitution is called counting the electoral vote. This is 
all the power that Congress has on that subject. It makes no differ- 
ence who is to do it. The debate up to the passage of this act was 
whether the President of the Senate should do it or whether the two 
Houses of Congress should participate with him in it ; and a variety 
of opinions from the year lbOO up" to now has been entertained and 
expressed by distinguished statesmen on both sides as to where the 
power was lodged. But it is immaterial now. The question is not 
who does it, but ichat is it that is to oe done. 

It was said by the objectors on our side — I think it cannot be con- 
troverted — that counting in its primary meaning is merely enumera- 
tion and is limited to that, in all cases where the subjects of the 
count are definitely ascertained. To be sure, it is an important ques- 
tion as put by the learned counsel on the other side, what is to be 
counted ? There is no dispute on that. It is the electoral votes ; and 
the cases which are referred to this tribunal are those of two sets of 
votes, and the power, therefore, is implied to distinguish between 
these several sets of votes and ascertain which is the vote lawfully 
to be counted. 

What is the nature and extent of that implied power incident to 
this right to separate the lawful from the unlawful electoral votes f 
for upon the question of the limit of the inquiry which this body is 
authorized to make under the act which organizes it depends the 
solution of the question as to what evidence it may look to for the 
purpose of determining the fact which is the subject of its inquiry. 
I think it involves undoubtedly the exercise of certain discretion and 
judgment. It may involve the decision of some questions of fact not 

2 KA 



18 

determinable merely by inspection of the paper purporting to con- 
tain the vote or to constitute the vote •; as, for example, the very case 
put by one of the learned gentlemen on the other side, its genuine- 
ness or whether it be a forgery : whether, if it be proven by a seal, the 
seal be the genuine seal. It may also involve the decision of some 
question of law, as for example whether the paper offered is one 
known to the law or made in conformity with the law. 

But this power, however described, whether as ministerial, admin- 
istrative, political, or otherwise, must be carefully distinguished from 
that judicial power which is exerted by judicial courts under the 
jurisdiction to try the title to an office by the prerogative writ of quo 
warranto. In the exercise of that jurisdiction the court, armed with 
its proper process and the machinery of trial by jury and for the en- 
forcement of evidence, goes to the very truth and right of the matter 
without regard to the paper title. It ascertains by a scrutiny and 
the testimony of witnesses who in fact received the legal number of 
legal votes to vest him with actual title to the office. Is it proposed 
here to do that ? Why, if your honors please, what length of time 
would be required to investigate by recounting and recauvassing the 
popular vote that lies at the foundation of the electoral vote in every 
State in the Union, or even in those which are the subjects of dispute 
in this count? And if you cannot go down to the bottom, if you 
cannot in probing and searching for frauds and errors and mistakes 
go through the long and black catalogue of crime, why stop at the 
first in order to take advantage of all the rest ? If this work is the 
work of this tribunal, then it is to be made thorough and searching ; 
certainly there is not any principle of law or good morals which, if 
the door be opened to that inquiry, requires you to stop before you 
have got through. 

I think it is plain that this commission is not engaged in the exer- 
cise of that jurisdiction. It is not invested with any portion of that 
judicial power which is conferred or constituted by the Constitution 
of the United States; and Congress not possessing it itself, could not 
confer it upon such a body as this, which is created for the mere pur- 
pose of assisting in the count of the votes, because it is not such a 
court as Congress is authorized to create for the purpose of receiving 
a grant of the judicial power of the Constitution. I do not doubt 
that the jurisdiction to try the title to the office of President and Vice- 
President, being judicial and properly exercised under the power to 
issue writs of quo icarranto, may be vested by law in the Federal 
courts, as a case at common law arising under the Constitution and 
laws of the United States ; but until vested it remains dormant. 
Whether in point of fact such legislation exists, either by a direct act 
of Congress or indirectly by the adoption of the Maryland statutes 
in the District of Columbia is a question upon which I am not ad- 
vised ; but the fact that such a jurisdiction either has been or may 
be evoked out of the Constitution is an unanswerable reply to the 
doctrine that Congress or this tribunal sitting in its stead has a right 
to make judicial inquiry as in quo warranto into the title of any office. 
1 claim, provided there be no actual legislation such as I have sP oken 
of by Congress, in respect to quo warranto in regard to Presiden* and 
Vice-President, that there is no law, either State or Federal, in refer- 
ence to the office and function of an elector. I maintain that there 
is no law, either State or Federal, whereby that title can be judicially 
investigated and determined after he has cast his vote. 

I maintain that no State can exercise such jurisdiction after that 
event, because, although by the terms of the Constitution of the 



19 

United States each State by its Legislature may determine the mode 
of the appointment and in fact make the appointment of its electors, 
yet the function of voting for President and Vice-President is exer- 
cised under the authority of the Constitution of the United States ; 
and if it were possible that such jurisdiction existed in State tribu- 
nals under the authority of State laws, it would be an easy matter in 
the great strife and struggle of political parties in the various States 
that constitute the Union after the election to interpose by judicial 
process such delays in respect to the quieting of the title of the par- 
ties having the regular and formal appearance of election as to defeat 
by an injunction as well as a quo warranto the right to cast the vote at 
the time when by the Constitution and laws of the United States it is 
necessary that it should be cast. And so it would be in the power of 
party and faction at any time when beaten at the polls by the popular 
vote to resort to these extraordinary writs under State authority and 
defeat their adversaries by the interminable delays of litigation. 

It was the policy of our fathers, it is the policy of the Constitution 
to provide a machinery which, let it work as it will, must neverthe- 
less by the 4th day of March after the election necessarily work out 
the result of having some President and someYice-President. It was 
of far more consequence, and was so esteemed by the framers of the 
Constitution, as it will be by every lover of law and order, that we 
should have some constituted authority ; far more important that the 
line of continuous authority should be preserved, than that either A 
or B should hold the place and receive the power and the emoluments 
of the office. 

I say, therefore, that although I admit that the State may provide 
as it pleases any mode by which the appointment may be made and 
by which the fact of appointment may be verified so as to furnish 
such machinery and mode of proof as it may choose to verify its own 
appointment, yet nevertheless it must take effect, if it have any power 
whatever, prior to the time when by the Constitution of the United 
States those who have the indicia of office and the color of office are 
called upon as the appointed electors of a particular State to discharge 
the constitutional duty of depositing their vote for President and 
Vice-President ; so that when the person appointed or who appears to 
have been appointed, having in his possession formal evidences of his 
appointment, in fact exercises the authority conferred upon him under 
the Constitution of the United States, actually discharges the duty of 
casting the vote which it is his business to deliver, the transaction to 
which he has been a party has passed beyond the control of State 
power and authority. 

Then, Mr. President; if I be right, the actual question before this 
commission is not which set of electors in Florida received a majority 
of popular votes; it is not which set appears from the return, of the 
votes made at the primary voting-places to have had a majority of 
votes so returned ; it is not which set by looking at the county re- 
turns appears to have had a majority of the votes so compiled ; but 
it is this : which set by the actual declaration of the final authority 
of the State charged with that duty has become entitled to and. 
clothed by the forms of law with actual incumbency and possession 
of the office. That body of electors which, with an apparent right 
and a paper title, and in possession of the function, franchise, or 
office, actually exercises it, is for the purposes of this tribunal the 
lawful body whose votes must be counted. It is not necessarily the 
body which upon subsequent proceedings may be ascertained to have 
had de jure title ; but it is that body which by color of office, having 



20 

the formal external proofs of authority, was in point of fact inducted 
into possession of the power to cast that vote and who did it ; in other 
words, who under the law of Florida were on the 6th day of Decem- 
ber, 1876, de facto electors for that State. 

The gentlemen say there were two sets. Why, Mr. President and 
gentlemen, it is as absurd to say that there are or can be two sets of de 
facto officers in the same office as it is to say that there are or can be 
two sets of de jure officers. It is as absurd in law as it would be in 
physics to say that two bodies can occupy the same space in the same 
moment of time. The man who is in the office, who has possession of 
it, who has been inducted into it, who exercises its authority, who 
does the thing which that office authorizes whomsoever is in it to do, 
is the man for whom we are inquiring, for he is the man that votes. 
Nobody else votes. Everybody else Is a mere volunteer, unorganized, 
illegal, without authority, no matter although his ultimate and final 
right be better than that of the man who has intruded. 

There is no safety and there is no sense — I speak it with great re- 
spect to this tribunal and to the gentlemen who differ with me ; I am 
bound to say it — there is neither safety nor sense in any other doc- 
trine. You may talk as eloquently as may be on questions of fraud. 
It is said " fraud vitiates everything." No, it does not. It makes 
things voidable, but it does not vitiate everything. If my friend, [Mr. 
Black,] by the arts and stratagems of other people, (which I know his 
guileless soul does not possess,) should hoodwink me by fraudulent 
misrepresentation into voting for his candidate — if that be a possible 
supposition — I cannot retract my ballot nor can the scrutiny set aside 
the result, because fraud upon private persons is sometimes insignifi- 
cant when compared with public interests. Frauds by trustees or 
persons in fiduciary capacities do not make void their fraudulent 
transactions. They may be avoided, but only by judicial process, and 
the defense of laches is always a sufficient answer ; and lapse of time 
may be an element in a matter of such transcendent public interest as 
this that no man, after the time had elapsed, can be heard to allege it. 

And, Mr. President, the only alternative, as I think I have already 
once said, is, upon the doctrine of our learned friends on the other 
side, that if the inquiry is opened it must be opened to all intents and 
purposes ; it must be opened for all inquiries and investigations ; it 
must be opened for all possible proofs. It will not do to stop at the 
first stage in the descent ; but you must go clean to the bottom. And, 
although it be not pertinent to a forensic discussion, perhaps the 
example set to me by the learned gentlemen on the other side will 
warrant the expression, on my part, of my personal confidence that, if 
that true result, setting aside all the forms and the fictions of the law, 
could be ascertained, there would be no question here as to who ought 
to be entitled to have counted in his favor the vote of Florida. 

Mr. President and gentlemen, an argument has been made upon the 
effect of the act of Congress of 1792, which provides for the certifica- 
tion by the governor of a State of those who have been duly appointed 
electors in that State. I have already corrected the misapprehension 
of the learned gentlemen on the other side that we regard that as so 
conclusive as that inquiry might not be made into its falsity, whether a 
forgery or genuine ; but nevertheless it is evidence ; it is evidence 
provided by existing law ; it is the evidence which Congress, of which 
you are the advisers and constituent parts in this matter, has made 
and declared to be regular, ordinary, usual, formal evidence of the 
facts which it contains, and if it be not conclusive, yet it is sufficient. 

I admit that the mere certifying act is not conclusive. It may be 



21 

dispensed with. Congress, who provided it, furnished it, made it a 
part of the transaction, may disregard it. They need not tie them- 
selves hand and foot ; they need not estop themselves ; hut they have 
directed this commission only to receive that which is competent and 
pertinent hy existing law, and the existing law makes the governor's 
certificate pertinent and competent and sufficient. 

But, Mr. President and gentlemen, if you go hehind the certificate 
what are you limited to hy the necessity of the thing ? In my judg- 
ment, you are limited to this : to an inquiry into what are the facts 
to which he should have certified and did not ; not what are or may he the 
ultimate and final facts and right of the case. The facts to he certi- 
fied hy the governor in this or in any case are the public facts which 
hy law remain and constitute a part of the record in the public offices 
and archives of the State, and of which, being governor for the time 
being, he has official knowledge. So, then, the case stands, that on 
the day and at the time when, if ever, the title and right to the pos- 
session and incumbency of this function became complete, Governor 
Stearns was the lawful governor of Florida, and the fact to be certi- 
fied was just what appeared at that time in his office or in the office 
of the secretary of state, to wit, that by the judgment and finding of 
the final authority of the State canvassing that election the gentle- 
men whom he certified to be electors had in fact and according to 
law been appointed. 

How shall I treat the pretense that a subsequent governor, coming 
in at an after time, or that a court, acting upon the status of the par- 
ties subsequently when it rendered its judgment — if it rendered any 
at all— could by relation change the de facto situation, or the pretense, 
more groundless still, that an act of legislation could unsettle and 
otherwise determine that which had already passed beyond the con- 
trol of mortal power ? For, Mr. President and gentlemen, I believe 
it is a saying of one of the sages of the common law that though Par- 
liament be omnipotent, it cannot alter a fact, and facts are rights. All 
our rights are founded on facts. All the theory and practice of our 
law and of judicial tribunals and all that system of government and 
society under which we live depend not upon abstractions, however 
beautifully they may be defined, but upon the facts of human nature 
and of human life. Stare decisis ! where does that come from? You 
perpetuate an error because if you do not, you will commit a wrong. 

Will the President inform me how much time I have consumed ? 

The PRESIDING JUSTICE. You have spoken forty-five minutes. 
I will notify you when the hour is up. 

Mr. MATTHEWS. The quo warranto proceedings in Florida which 
seem to be relied upon in this matter, in my judgment, cannot be 
alleged against the truth of the facts recited in Governor Stearns's 
certificate, mainly for the reason which I have already given, because 
all State power had passed away. But the record of that proceeding 
does not in anywise correspond with the description of what consti- 
tutes an estoppel by judgment according to the decision of Chief- 
Justice De Grey in the Duchess of Kingston's case. In the quo war- 
ranto in Florida the inquiry was not what it is here. The inquiry 
there was what was the actual, real, final right, not who in fact ac- 
cording to law on the day exercised the power and was entitled to 
possession. One man may be entitled to possession, another man may 
have the right. Nothing is more common than that. Gentlemen have 
sat in both Houses of Congress upon a certificate of election and they 
had the right of possession, when perhaps some unnamed person out- 
side the area and not entitled to the privileges of the floor may have 
had residing within him ail the time the real right. 



That leads me to say that the analogy drawn between this case- 
and the celebrated New Jersey case by my distinguished friend from 
Pennsylvania [Mr. Black] fails utterly, because by the express terms 
of the Federal Constitution the House of Kepresentatives was the 
judge not only of the qualification and return of the members but 
of their election. Therefore it could set aside the broad seal of the 
State of New Jersey and the prima facie right to inquire into the real 
right. I have already undertaken to show to this commission that 
they are not sitting here with any such jurisdiction as that. 

But so far from availing anything as proof against the position 
which I deem to be the right and constitutional one here, that record 
establishes for us by the very verity which is claimed for it on 
the other side the essential fact on which in my judgment rest all 
the rights involved in this discussion ; and that is that on that day, 
on the 6th of December, the day appointed by law, the respondents 
in that proceeding who are certified in certificate No. 1 were in posses- 
sion of and exercising and discharging the functions and duties of that 
office of elector, and that the complainants or relators were not, be- 
cause, they said, we kept them out, we were unlawfully intruding 
and had ousted them and thereupon they asked to have themselves 
reinstated. But the fact is that on that day, the critical day, the day 
of days, the respondents in that record are shown by the gentlemen 
to have been in the undisturbed exercise of the actual franchise of 
electors for the State of Florida, and hence they cast their votes and 
hence their votes are entitled to be counted ; and inasmuch as the 
relators appear by the record not to have been in possession, not to have 
been situated so that by law they could exercise that function, they 
complain and admit that the form of their vote was mere dumb-show 
without meaning or significance and without the least particle of 
legality or constitutional force. 

Mr. President, I am exceedingly obliged to yourself and the gentle- 
men of the commission, and will now suspend the argument so far as 
I am concerned. 



(L 



,Ir,Ef! ARY 0F CONGRESS 



021 051 478 8 



